Luring a child
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
Constitutionality
- The mandatory minimum sentence provided for in section 172.1(2)(a) as a sentence for offences under sections 172.1(1)(a) and (b) has been declared unconstitutional as it violates section 12 of the Charter and cannot be saved by section 1: R v Hood, 2018 NSCA 18.
- HOWEVER, the Supreme Court overturned the Ontario Court of Appeal's conclusion that this mandatory minimum was unconstitutional as it held that the basis upon which it so concluded was invalid given that section 172.1(3) was declared unconstitutional by the Supreme Court. In short, while expressing concerns about the constitutional validity of this mandatory minimum sentence, the Supreme Court declined to rule on it and overturned the finding of invalidity by the Court of Appeal: R v Morrison, 2019 SCC 15 at paras 143-153, 160, 161-192, 195-227.
- Subsequently, the Ontario Court of Appeal has upheld the constitutional validity of this provision: R v Cowell, 2019 ONCA 972.
Punishment
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Constitutionality
- Section 172.1(3) violates section 11(d) of the Charter and cannot be saved by section 1 - it is therefore of no force and effect: R v Morrison, 2019 SCC 15.
Presumption re age
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
Constitutionality
- Section 172.1(4) does not violate section 7 of the Charter: R v Morrison, 2019 SCC 15. This conclusion is based, in part, on a reading of section 172.1(4) that recognizes this provision as limitation to a defeence - if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, then a trier of fact is precluded from the defence that the accused believed the other person to be of legal age: R v Morrison, 2019 SCC 15 at para 83.
No defence
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
Annotations
- There is only one pathway to conviction for offences in sections 172.1(1)(a), (b) or (c), namely, that the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage: R v Morrison, 2019 SCC 15 at para 83.
- To the extent that R v Levigne, 2010 SCC 25 suggested there were two pathways, that approach is not correct - especially in light of section 172.1(3) being declared unconstitutional: R v Morrison, 2019 SCC 15.
- With respect to s. 172.1(4),the qualifier "in the circumstances known to the accused at the time" should be read into the "reasonable steps" requirement. The requirement is also an ongoing one. Reasonable steps may include: (i) asking about the other person's age; (ii) noting the person's representations about their age; (iii) asking for and receiving proof of age; (iv) observing conduct or behaviour that indicates the other person's age; (v) communicating through a website that enforces age limits; and (vi) including language in one's ad that indicates they are looking for only adults: R v Morrison, 2019 SCC 15 at para 112.
- With respect to s. 172.1(4), the following principles govern this defence: (i) First, the accused bears the evidentiary burden of pointing to some evidence about reasonable steps taken - thus raising an air of reality; (ii) Second, if there is an air of reality, the Crown bears the onus of disproving the defence beyond a reasonable doubt - this does not mean that the Crown must prove beyond a reasonable doubt that the accused failed to take reasonable steps, however; and (iii) Third, regardless of whether there is an air of reality, the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage: R v Morrison, 2019 SCC 15 at para 116-133.